One fine late summer day, Larry strode down the sidewalk next to a tall wooden fence. As he walked, a dog began barking spiritedly from the other side. "Hmmm," thought Larry "that poor, poor animal is being oppressed by the authorities who erected this fence." This thought filled Larry with a rush of self-esteem. "This fence is not right," thought Larry. "I see no sense in it, other than to concentrate power in those who built it. I shall help the poor animal inside." The resulting jolt of self-esteem left Larry lightheaded. He nonetheless took it upon himself to pry loose a board in the fence, feeling he had now freed the dog to follow its conscience about which side of the fence to stay on.

Larry continued down the sidewalk, buoyed by the gossamer wings of esteem for himself, and his own sense of wonderfulness. His thoughts were interrupted by the unmistakeable sound of a pit bull, who had apparently decided that it preferred to be on the same side of the fence as Larry, if only because that made mauling things easier. Larry turned to see the snarling animal bearing down on him, teeth bared, snarling violently, anticipatory saliva flying off into the slipstream.

"Maybe this dog will bite me," Larry considered, his self esteem momentarily displaced. "Perhaps I can reason with him. I'll get him to consider tofu, or some other less meat-oriented diet." A chastening thought then occured to him. "What if attacking me is reasonable? I really shouldn't impose my value system." The familiar opiate of self-worth again comforted Larry.

"Perhaps I should jump the fence to get away from this doggie," thought Larry as the distance between them was becoming uncomfortably small. "No, I shouldn't assume that just because this is a charging pit bull that it is any more likely than any other dog to bite me. Unless Clifford the Big Red Dog would send me over the fence, I won't let my prejudices get the better of me."

As the dog was now airborne, jaws agape, Larry thought "I wonder what we all did to provoke this dog. I can't help but feel some collective responsibility." The expected rush of esteem was interrupted by the animal sinking its canine chompers into the flesh of Larry's upper arm. The pain was intense and it took some effort for Larry to reason: "You know, this is why we need universal healthcare."

Saturday, January 24, 2009

One of the challenges of diplomacy is that occasionally one encounters an adversary who seems to have nothing to lose; the zealot who does not value his own life, the despot who has lttle concern for the welfare if his people, the anarchist who values only chaos. There is in fact however, one thing that all serious men and women value, one thing that if plausibly threatened will get their attention. There is one thing that any serious person with serious ambitions can not afford: someone causing them to waste their time.

Saturday, January 17, 2009

We have all heard stories of draconian and Kafkaesque entaglements suffered by people whose innocuous conduct conflicts with some over-zealous enforcement of "the rules." Often it seems that common sense is banned from the conduct of human affairs. Children are suspended from school for possessing a Tylenol, and five year olds are labeled sex offenders for hugging a classmate. When the inevitable outcry arises, public officials hide behind the fiction of "zero-tolerance," as though that were some sort of noble principle.

In fact zero-tolerance is a symptom of thoughless fanatacism. While "zero tolerance" itself might not explicitly contravene the Constitution, the principles behind it have certainly been disfavored in American law. In rejecting the concept of mandatory death penalties, the Supreme Court cited the case of Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, which observed:

For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed, and that there be taken into account the circumstances of the offense, together with the character and propensities of the offender.

Note that the Court is refering to what justice requires, and that it quite explicitly is "the circumstances of the offense." The whole point of "zero tolerance" enforcement is that the circumstances of the offense is irrelevant. We may then logically conclude that "zero tolerance" policies are contrary to what "justice generally requires." But that is not all that the Supreme Court had to say on the matter. The death penalty case that cited Ashe was Woodson v. North Carolina, 428 U.S. 280, which also contained the language:

While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a Constitutional imperative...

So we see that consideration of individual circumstances in assessing infractions is "enlightened policy" and that ignoring such considerations must be less so. Thus, the Supreme Court has opined that ignoring the individual circumstances of a rule infraction or transgression of the law conflicts with both justice and enlightened policy.

The phenomenon of zero tolerance policies reflects several not-very-appealing traits in the officials that support them. One such trait is obviously cowardice, hiding behind inflexible policy in order to be spared a controversial decision. But this is not the whole story. Many otherwise well-meaning officials devolve to "zero-tolerance" troglodytes. They may start off with good intentions, and adopt a particular cause which they then embrace with greater and greater fervor. They come to accept that what they believe is so right that it must be a virtue not only in specific cases, but a virtue in general, so that there can be no counter-examples to refute the righteousness perceived.

Zealots see zero tolerance not as a dictum of lazy management, as much as an expression of a universal truth. Of course, anyone who reasons this way has crossed the line that separates reason from fanaticism. The same malady of thought that perceives the sex-offender in the affection of a kindergartener is the same that senses the threat of racial impurity, or of ideological infidelity. Fanatacism is a disorder of believing that other people need to accept the fanatic's view of the world, and must live in accordance with that view. It is one person driven to hysteria by people living their own lives.

Sunday, January 11, 2009

Legal systems have long made use of "fictions" because it facilitates expression of legal principles. Thus, for legal purposes, a corporation is treated as a person, and the government is allowed to confiscate your car if, unbeknown to you, it was part of a drug transaction, on grounds that the car committed a crime.

Our healthcare system is also burdened by the use of fictions, and in fact, the typical large hospital intensive care unit is often a theater in which doctors, nurses, patients and their families play "Let's pretend," so as not to too directly confront the unpleasant and painful. There is however, one fundamental fiction in haelthcare that should be identified and recognized as false, since it inhibits reasoned analysis of the challenges of healthcre delivery. That fiction is this: We only want what is best for the patient. The reality is that everyone wants more or less what is good enough for the patient considering other concerns.

For any given patient, there are a number of parties interested in the healthcare decisions applicable to that patient; and not "interested" in the sense of humanely concerned, but interested in the way the mafia is interested in protection rackets. The hospital is interested in providing care that is economically sustainable in the setting of limited reimbursement, staffing concerns and its role as a community resource. Insurance companies are interested in reimbursing providers for care that is cost effective, and to some degree predictable so that they can perform their actuarial functions and assess risk. Nurses are interested in providing care in a manner that allows them to effectively care for all of the patients in their charge without having thier services monopolized by any one patient. Doctors are interested in providing care according to their ethical obligations, the constraints on their time, the necessary stewrdship of resources, and the competing demands of all of the other parties. This of course has not mentioned the specter of defensive medicine. In sum, what each of the parties wants is to do what is good enough for the patient, while having their interests considered.

To better understand this dynamic, one should think in terms of efficiency, that is, each patient care decision should be thought of a ratio of the benefit to the patient per unit of something valuable that is expended. Each party measures the patient's care (or wants to anyway) according to different ratios. Let's say the numerator for such ratios is the improvements in the objective health measures of the patient. The hospital administrator considers the amount of such change per unit of unreimbursed hosptial services; the nurse may consider such benefit per unit of his or her time, and the doctor needs to consider the benefit with respect to his time, the risk of adverse consequences to the patient, and the knowledge that his decisions could bankrupt some of the players involved. Even the patient has to consider the amount of benefit against the pain, disability, burden of therapy and risk of a poor outcome. In no absolute sense can anyone identify what is "best" for the patient.

In a sense, each of the players has an argument for why their interests should be considered. The insurance company can say, "hey, when you bought your policy, in exchange for lessening the risk that a disease would financially ruin you, you agreed to our efforts to reasonably limit the costs of your care. The physician can say, "when you chose me to care for you, you did so subject to my time constraints, training, and ethical perpective," etc.

When we regard healthcare decisions in terms of efficiency as above, where each decision tries to maximize some benefit with respect to some cost, it is rather straight-forward to see that each such cost is the criteria for sime form of rationing. THis is the fundamental fact of healthcare in the United States, in Canada, Great Britain, wherever; all healthcare is rationed.

The fiction that we "do what is best for the patient" is a child's fable meant to hide the fact that healthcare delivery is a mix of moral, economic, technical, and metaphysical concerns. It creates the paradox that, in reality, healthcare in some form or other is available to everyone, but if they are expected to pay for it, then they are somehow denied access to it (thus requiring a government "system" to intervene on their behalf). This, however is the beauty of a healthcare market. Patients are free, by their choices to seek care that is efficient in terms of financial risk to themselves, if that is their desire, or efficient in terms of their moral values, or in terms of philosophy of life, or really just about anything that is important to them. And in the long run, having this choice may be what is best for the patient.